The Pre-16 Legal Framework

This is the legal framework or structure which supports the education for young people with ME of compulsory school age who are too ill to attend school full-time. Each Local Education Authority (LEA) has a duty by law to abide by it. I would suggest you pin this to your noticeboard.

Definition – a ‘duty’ means an LEA is obliged by law to carry out a responsibility.

All the following are duties:

Section 19(1) of the Education Act 1996 says:
‘Each local education authority shall make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.’
In other words, an LEA is obliged by law to find other ways of educating young people who are too unfit to attend full-time school. This may be tuition at home, in a hospital school, part-time at school or in a special centre. The arrangements and education must be suitable.

Section 19(6) goes on to define the meaning of ‘suitable education’:
‘In this section ‘suitable education’ in relation to a child or young person, means efficient education suitable to age, ability and aptitude and to any special educational needs he may have.’
‘Special educational needs’ is defined in Section 312(2b) of the Education Act 1996 as ‘has a disability which either prevents or hinders him from making use of educational facilities of a kind generally provided for children of his age in schools within the area of the local education authority.’
In other words, the arrangements must have regard for the student’s age and the level educationally he/she has reached but must also take into account his/her medical difficulties. ME classes as a disability.

East Sussex County Council ex parte Tandy
This case was brought when East Sussex LEA tried to cut the home tuition service because they could no longer afford it. The judgement links in with Section 19 above. Five Law Lords unanimously agreed:

• LEAs cannot avoid their duty under the law.
• LEAs have a duty to make alternative arrangements for sick children who cannot attend school full-time.
• LEAs have a duty to provide a suitable education.
• Money cannot be taken into account when deciding what constitutes a ‘suitable education’.
• LEAs have a duty to make suitable arrangements for each sick child individually and not as a group (no blanket policies)
• If there are two ways to provide a ‘suitable education’, then and only then can the cheaper option be taken (but both options must be ‘suitable’).

These three pieces make up the duties that each LEA has to legally carry out.

This duty ends once the young person leaves school in year 11 but the LEA still has a ‘power’ to continue these arrangements should they wish. Funding guidelines state that an LEA should continue to provide tuition if a student is in the middle of a GCSE course.

'Access to Education for children and young people with medical needs' offers advice and guidance to schools and LEAs on how to carry out their duties based on the law discussed above. Each LEA should also have its own written policy freely available to the public.

Article last edited on Thursday 12th August 2010                          Printable Version